A. Precedents Cited (and How They Shaped the Decision)
Arnesh Kumar is the backbone of the modern Indian “anti-mechanical arrest” jurisprudence for offences punishable up to 7 years.
The Supreme Court there interpreted the arrest power under Section 41 CrPC and the notice mechanism under Section 41-A CrPC,
holding that:
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A police officer cannot arrest merely because they believe the accused committed the offence; they must also be satisfied that arrest is
necessary for one or more enumerated purposes.
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Where arrest is not required under Section 41(1), the officer must issue notice under Section 41-A (now Section 35(3) BNSS).
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If the person complies with notice, they should not be arrested unless reasons are recorded and the necessity test is met.
In the present judgment, the Court expressly carries this logic forward to the BNSS framework and uses it to reject any understanding that
arrest is routine in the up-to-7-year category.
The 2022 decision reinforced that despite Arnesh Kumar, compliance with Section 41-A CrPC was often lacking,
and it urged courts to “come down heavily” on unlawful arrests.
It clarified the statutory architecture: “reason to believe” and “satisfaction as to necessity” are
both mandatory elements to be recorded.
The present judgment leans on this to interpret Section 35(1)(b)(i) and Section 35(1)(b)(ii) BNSS as a
combined threshold, not alternatives.
3) Joginder Kumar v. State of UP And Ors. (1994) 4 SCC 260
Joginder Kumar supplies the normative and constitutional distinction central to the present order:
the existence of power to arrest is different from justification for exercising it.
The judgment’s warning about reputational harm and routine arrests is used here to underscore that BNSS safeguards must be read in light of
Article 21.
4) State of Uttar Pradesh v. Bhagwant Kishore Joshi, (1964) 3 SCR 71
This case is cited to situate arrest within the broader concept of investigation.
The Court emphasizes that investigation primarily concerns collection of evidence and can proceed without arrest, making arrest
a discretionary investigative tool, not an investigative default.
The extract also references H.N. Rishbud and Inder Singh v. State of Delhi to describe the typical steps in investigation,
reinforcing that “arrest” is only one possible step.
The Court quotes its earlier 2025 articulation of the Section 35(3)–(6) regime:
compliance with notice shields against arrest absent recorded reasons, and even non-compliance does not trigger automatic arrest; discretion remains,
rooted in liberty under Article 21.
The present order extends and sharpens that approach by adding an important limiting principle: post-notice arrest under Section 35(6) must be supported
by new materials/factors not available when notice was issued.
6) Chandrashekhar Bhimsen Naik v. State of Maharashtra & Ors., 2025 SCC OnLine Bom 5357
This Bombay High Court decision was invoked to suggest a potential “grey area”: notice is described as “imperative”, yet it also recognizes the possibility
of arrest with recorded reasons. The Supreme Court resolves any perceived tension by holding that there is no contradiction:
notice is the rule; arrest remains possible only as an exception under the statute’s own safeguards and recorded reasons.
While the matter was pending before the High Court, the Supreme Court’s present clarification directly addresses the core question and is likely to govern
the approach in such pending disputes concerning Section 35(3) BNSS and arrest in up-to-7-year offences.
B. Legal Reasoning
1) “May arrest” means discretion, not compulsion
The Court foregrounds the statutory wording of Section 35(1) BNSS, emphasizing “may” to confirm that arrest is a
discretionary power. This is not merely semantic: it is deployed to rebut any policing practice that treats arrest as the standard response.
2) The double-threshold for arrest under Section 35(1)(b)
For cognizable offences punishable up to 7 years, Section 35(1)(b) requires:
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Section 35(1)(b)(i): “reason to believe” based on complaint/information/suspicion; and
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Section 35(1)(b)(ii): “satisfaction” that arrest is necessary for at least one specified purpose (prevent further offence,
proper investigation, prevent evidence tampering, prevent witness intimidation, ensure court presence).
The Court holds that these must be read together and that compliance with clause (i) is a sine qua non for any arrest.
Even then, only one of the clause (ii) grounds must exist (not all).
3) Section 35(3) notice is the operational default for up-to-7-year offences
The judgment’s key clarification is that a notice under Section 35(3) is to be issued “as a matter of course”
for offences punishable up to 7 years. The Court reads Section 35(3) in harmony with Section 35(1)(b) and its proviso requiring written reasons
for both arrest and non-arrest.
4) The protective effect of compliance: Section 35(5)
If the person complies and continues to comply with notice, Section 35(5) creates an implied prohibition on arrest.
Arrest becomes permissible only if the officer records reasons and forms the opinion that the person “ought to be arrested”.
The Court treats this as a liberty-favouring safeguard rather than a procedural formality.
5) Post-notice arrest under Section 35(6): the “fresh material” requirement
The Court introduces a decisive limiting rule: when moving from notice to arrest under Section 35(6), the police must not rely on
the very circumstances that justified issuance of notice. Instead, a subsequent arrest must be justified by
materials and factors not available at the time of issuing notice.
This reasoning serves two purposes:
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It prevents a “notice first, arrest later anyway” practice that would hollow out Section 35(3)–(5).
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It aligns arrest with objective necessity emerging during investigation (e.g., new evidence of tampering, threats, absconding risk),
rather than administrative convenience.
6) Article 21 as the interpretive lodestar
The Court explicitly ties Section 35(6) safeguards to Article 21, treating the notice-and-exceptional-arrest framework as a constitutional
technique to minimize unnecessary deprivation of liberty. This constitutional framing elevates compliance from “best practice” to “rights compliance”.